No, the message is the message

Eric F. Greenberg Attorney-at-Law

September, 2017

Today's topic is communications strategies, and why the unfairly put-upon food contact industry has such a tough time with them.

As with any industry that finds itself embroiled in a public controversy over law or science, effective communications about issues are an essential part of the scene, and makers and users of packaging are no exception. This is particularly so because public attention to food contact and other packaging materials is, sadly, rarely welcome. Instead, when packaging materials as such are the subject of public attention, it's often because NGOs or others say they are unsafe, even as, just as often, FDA and industry agree they are not.

As packagers know well, there are numerous interesting, creative, and even exciting stories to be told about the ingenious engineering and technology involved in the creation of packaging materials and structures. Instead, when there are headlines about food contact materials, they tend to be about someone's alarmist concerns about their safety.

The realm of materials that contact food, in particular, presents some challenges when public messages are involved. For one thing, the average consumer knows next to nothing about the materials or technologies being used. For another, the way the laws and regulations are set up relating to substances used in food contact materials and surfaces presumes that some amount of those substances is reasonably expected to get into food, and probably the average consumer doesn't know that, or if they do, they rarely think about it. And nothing is helped by sources like the NBC Today show posting an online column, as it did recently, containing the starkly bone-headed remark, "Currently, the chemicals going into food packaging materials are unregulated."

It's also important to remember that there's a difference between something being literally unsafe and being nominally unsafe under the law. Because FDA's regulatory scheme for food contact materials incorporates limitations and specifications for most clearances for use, and because the law calls "unsafe" any material that's not used in a way that's consistent with its clearance, packagers can find themselves facing "unsafe" and not-legally-compliant uses of materials that simply do not present any safety concern, but still need to be remedied nevertheless.

Most commonly, these controversies center around levels of exposure. In short, not every detectable amount of a chemical presents a hazard. But just try explaining that to the general public. The public rarely pays attention to the levels involved, and, with all due respect, many people may not have the ability to judge such things. That's why the public is especially susceptible to sensationalized scare stories and claims that facts are unknown and therefore should be feared.

It's a very touchy message to cobble together, to create a truthful and not misleading message that balances reassurance with admission that something in food might theoretically cause harm if there were more of it, but there isn't, so everything is OK.

Recently, Kraft Heinz did about as good a job as it's possible to do while conveying this kind of message. After an NGO-commissioned study found phthalates in almost all the samples they tested of packaged powdered macaroni and cheese mix, Kraft Heinz responded. The New York Daily News quoted a Kraft Heinz representative as follows, and other outlets quoted her similarly: "We do not add phthalates to our products. The trace amounts that were reported in this limited study are more than 1,000 times lower than levels that scientific authorities have identified as acceptable. Our products are safe for consumers to enjoy."

FDA, I am confident, would concur. The agency has said that it developed its Threshold of Regulation level with safety factors built in, such that cumulative exposures need not be a concern-specifically, that "the cumulative exposure from a limited number of trivial food additive uses is not likely to be more than negligible."

What's next? More study of the safety of phthalates? OK, fair enough. But concern or fear in the meantime? No.

Food companies have long struggled with how to communicate effectively when issues like these arise, and their job appears to have gotten more difficult lately. Ron Bottrell, senior counselor for food safety at Hill+Knowlton Strategies, has been a leading strategist for food industry communications for decades. He laments the powers of NGOs to make noise when facts aren't on their side.

Bottrell explains, "One of the long-running frustrations of working with food and agriculture companies has been the inability at times to overcome fear campaigns waged by NGOs and activist groups, even if there's a conviction that science is on your side. Unfortunately, emotion generally trumps science when it comes to moving the public opinion needle."

Social media have made the problem worse, he says. "It's now easier to launch campaigns, disseminate articles and opinion pieces, and start online petitions urging companies to eliminate a particular ingredient, processing step, or type of packaging. Companies lacking the capability to respond quickly on social media have surrendered a platform to address consumer concerns quickly and accurately."

Bottrell notes that the recent campaign against phthalates was "cleverly timed to coincide with National Mac 'n Cheese Day," which led to the campaign being picked up by mainstream news outlets and on social media. "Unfortunately, the handful of articles that tried to put into context the low level of risk got scant attention and minimal social media coverage. The same was true for BPA for several years, and despite a preponderance of scientific evidence that was reviewed by FDA, CFIA, and EFSA attesting to BPA's safety, several companies chose to switch rather than fight."

It's that tendency of industry to switch rather than fight that could lead to further long-term damage to industry as well as the public. The more that factual and scientific messages are lost to image-making and shouting, the farther away we all get from operating on a basis of facts. PW

Eric Greenberg can be reached at [email protected], or visit his firm's Web site at www.ericfgreenbergpc.com.

This article is informational only and is not intended as, and should not be considered to be, legal advice.

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Usually packages are filled that way for good, and lawful, reasons

Eric F. Greenberg Attorney-at-LawNovember, 2017
Accusations that packages contain unlawful slack fill seem to be proliferating. They are increasingly being made within civil class action cases, on behalf of thousands or millions of individual consumers, rather than as enforcement actions by regulators. On behalf of packagers everywhere, please allow me to make this complex legal argument: Such accusations ain't really fair.

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